LAW AND POLICE.

New Zealand Herald, Volume XX, Issue 6816, 21 September 1883, Page 3

LAW AND POLICE.

RESIDENT MAGI TRATE'S COURT. TIUTB-iDAY. [Before H. G. Seth Smith, Esq;, B.M.J Tiie Weekly sitting of the Coart to hear and determine small debt claims vraa held this morning, and the following business disposed of: — Undefended Cases { Judgment fob Plaintiff). —R. Stow v. Alfred Sayers, £1 53, costs 7s ; The Same v. George Parker, 10s, costs 12s ; B. Tonka and Co. v. John Robinson, £11 14.s 3d, costs £2 5s ; J. C. Seccombe y. Thomas Kelly, £19 2s, costs £2 6s. .. JUDGMENT DEBTS, )' Tmomas Fablder v. Henry Lnvis,— £2 4s. The defendant appeared., and was ordered to pay the debt oa or before Uth of October, or in default five days' imprisonment. Johv Leck v. J OIIN Mullali.y,—£l2 13s Id. The defendant said he had fourteen or fifteen judgments against him, and could not pay. : Ordered to pay by 4.th of January, 1884, or it* default fourteen days' imprison, ment. Hesk,? S. Wallace v. John Mullally. —£7 15a 6d. Tne defendant repeated his statement, and was ordered to pay the debt by the 4th of January, or fouirtteii days' imprisonment. Frederick Heine v. John Mcrphy.— £3 7s. Defendant did not appear, and was ordered to pay the debt within a month, ox five days'imprisonment.

, Adjourned,—Peter Gilfoyle v. Union Sash and Door Company, £39 9s.

„ City Council y. Connoin—Claim, £4. Mr. Cotter for the plaintiff, Mr. E. Cooper for the defendant. Tliia was an action to recover £4 by way of rent and. possession, of premises occupied by defendant. The. facts deposed to are somewhat peculiar: Henry Connop, the defendant, was the first witness called. He said that on the 24th of February, ISSO, he went in'o Grant a«d Morton's sale rooms, where he saw a certain property in course of sale. It wag purchased by Mr. Payne. Witness asked Mr. Payne what he would take for his bargain. Payne said he would hold on to it for the present* but if Ire should dispose of it,, the witness would have the first offer. Witness saw ■ Payne afterwards, who said he might; have the lease for the rent, and witness executed a lease for four years. The case of the defendant was that the lease was for three years, not four years. The lease was on a printed form, and the word " four." was part of the body of the instrument.' The Town Clerk deposed that the resolution of the O mncil was passed in July, 1.879, in which 1 ' these properties " were to be leased from, the 12th of August, 1879, for "about four years." But, as the lease waa put up to auction in February following, the term would be about three years. [Witness produced instructions to the auctioneers to sell,.the lease for three years. The conditions of sale under the purchase was effected the agreement to lease between Payne and j theSCorporation.] The lease was, in the first'- instance, ..made out as between Payne and the Corporation. But Payne's name, ; ; was . taken out, and that of Connop inserted. But in the body of the instrument the word " four" was left, undeleted. Mr. E. Cooper contended that the Conditions of sale, if received in evidence, should be stamped. Mr. Cotter agreed to stamp them. Mr. Cooper said Cannop wai not-present when the conditions of sale were. read.. , Charles Brown, an engrossing clerk in the office of Messrs. Russell arvl aud Devore, said the word "four" should have-been altered to " three" years.. The Town Clerk said that Connop came to him Shortly after the sale, and said Mr. Payne "bid for him," or words to that effect. Asked if there was any objection to the name in the deed being changed from Payne to Connop..: Witness knew of no objection if the.'Solicitor; to the Cofpotation saw none. His' Worship : . If the alteration was made after tho ; execution of the deed, then lease'fii would be void altogether. Mr..Cotter: If. the deed is void, then the defendant's case would fail altogether. But I think 1 can show your Worship that you will be justified in taking into consideration the equitable rights of these parties. By the Law' Amendment Act IBS 2, it is provided that in cases for- which the common or statute law docs not provide, or where there was any conflict, the "principles of equity should be held to prevail." Mr. Cooper: It appears to me that if a mistake has been made, it was not the mistake of the defendant, and he ought not to be held responsible for the mistake of another. The mistake was clearly a clerical error, which was made in the office of the then City Solicitor. His Worship :It appears' to me that the mistake iftay have been On both sides. Connop could not get more hi' the'lease "than what Payne had under it, Mr..Cooper.,: I think that the Corporation jiave; him something more. His Worship : Payne must bj assumed to be present when thu.,conditions of sale were read ; must have known the term of lease to be sold if he signed the lease with the word " four " in it, and if lie did not learn that fact it was a fact j which he must .be presumed to. have known by signing his name to it. But if he knew that the actual term was three years, and the word ."four." remained in the deed, he was a party to the mistake. Mr. E. Cooper : It is 'not. right that defendant should suffer. His.SjWorship. :, ; .-;I am not. saying that he should suffer, j Mr. E. Cooper : I submit that there is no power in this Court to rectify or set asidesadeed. His Worship :I do not rectify a deed. If it is a void instrument I cannot receive it as evidence. But the thr.-e years have expired if the defendant is light. [A lengthy argument ensued between counsel as to the validity of the lease.} The Town Clerk in his evidence said that he told Mr. Connop when the lease had expired that he could not take the rent—that there had been [ah error.. Upon this Connop said, "I mean (tcrhave £30 or £40 out of it." The defen* dant w.is recalled, and swore positively that Payne had; purchased for himself, that he took from Payne with the consent of the City Council, which accepted him as lessee. The premises were situated in Wake field-street, and might produce ISs a week rent. His Worship, in giving his decision, said : It appears to me that the plaintiff took orily whatever interest Payne had under this lease—no less and no more. It is true that a mistake has been made. But; that was not the mistake of the City Council alone. It appears to me that there was a mistake by both parties. If this kid been a proceeding before a Court of Equity for the rectification of the deed, the deed would have been recti* fied in accordance with the original intention of the parties. Bat I must look on this deed as if it had been executed as the parties intended it should bo executed. That appearj clear from the evidence—pa lease for three years, from the 12th of July, IBSO. Judgment for plaintiff.

;j):f Stanford v. Ribd.—Claim, £10. Mr, Theophilus Quoper for plaintiff; Mr. E. Cooper for thu defendant. The action was for money had and received by the defendant to the uao of the plaintiff. The facts in this case are very peculiar. The plaintiff is the licensee of the Club Hotel, Ponsonby. The defendant is a builder and contractor. On the 14th of September defendant called at the hotel at ha)f-pa-t eleven a.m. Plaintiff was making up his deppsit slip to pay into the bank- lie was counting out the money taken tbe previous day, viz.—9 notes, 4 five-pound notes, 4 five notes of the Union Bank, 1 ten-pound of the National Bank, 5 pounds in gold (£39 iu notes and £5 in gold). The defendant asked for change for a ''tinner," to save him a journey to town. It seemed to him (Mr. Cuopcr) one of the most extraordinary eases that had ever occurred in the town. The plaintiff (\Vin. Stanford), deposed that he knew the defendant, who asked for change of a £10 note. Defendant said : A3 you have the money in your hand, you might aa well give ma change for a ''tenner," to save me goinpto to\Vn, Witness counted out to himthe nine £1 notes, and laid them on the counter, and then laid one of the sovereigns with thim. The defendant took up til-: monev, and counted it, The witness, in consequence of giving the change, had to alter his bank slip, lie did so, aud asked the d.efendaut for the £10 note. The defendant replied : "I have given it to you." Witness replied to defendant You have not." Defendant said : I gave you two £u cotes. Witness had noticed that defendant had two £5 notes in his hand, and replied : "Ho, yoti have them in your hand." Strong wor.ls, ensued, i Defendant said he could tell who paid him ■ four £5 notes. Plaintitf could swear .to taking in business the £5 notes which he held in his hand, The plaintiff 1 urther deposed thathis Wife was standing in the bar. She had turned toeervethree onstomers. She must liaveheard what hail passed. Wtfccesi called the attention of these three gentlemen to. what had. happened, lie asked .them to count, the. money. They were very.: reluctant to interfere. Eventually Mr. Day counted the.

, money, and found that there was £10 short, M>3. Stanford corroborated tile evi<ienoi> of J the last, witnuts in all essential particulars. ' She paid ?he counted tli-- rn/mcy : idi iiei [husband. There were £i-% al.og.cth- r—£39 in notes and £5 in gold. She gave one - tie oil-.'-pound notes out of her own pouket. in ! ordef to make ap the sum. The witness was examined with great minuteness as to her memory of the transaction, and her position at the time, John Samuel Day said he was one of the three who were served With the beer. Hii attention was called to the dispufce going on.. It in a different part of ! bar. He Was reluctant to interfere. He subsequently went and counted the money. There was- £1.0 short as compared with the amount stated an the bank slip. | Defendant, a contractor, redding at Pon- | sonby, deposed that he asked Mr. Stanford :to change four £3 notes, Mr. Stanford haying a roll of notes in his hand at thes time, i Mr. Stanford said he could Only change two j " fives," and handed witness nine "ones": and a sovereign; witness handing Stanford the two fives. Shortly afterwards Stanford said that witness had not given him the two fives. Witness was positive he handed over i two £5 notes to plaintiff. Cioss-examified : Mr. Harkins. paid me the four " fives" on the, Tuesday afternoon previous. The cros— exainiuation Wis very exhaustive, Annie Reid, wife of defendant; deposed that on the day in question she noticed that her husband had in his possession four £5 notes, one £1 note, and some silver, she wag positive he had four five?. John Kane was also examined. Counsel for defendant having ad-dres-ied the Bench, counsel for plaintiff proceeded to review the evidence, when His Worship said he had fully made up his mind. Judgment was given for plaintiff, with costs. POLICE COURT.—TucifSDAY. IBcfore Messrs. F. and. I>. il. Mct)onald, JP.'s] Drka enn e-s.—-Seven persons were punished f-ir first and secou.l offences. Assault. —Wm. A. Smith was charged with assaulting James Campbell, by striking him repeatedly on the head and face with h;s clenched fish. Mr. Tole appeared for the informant. Defendant, asked for an adjournment of the case. He had only received the summons at five o'clock the previous evening,' ;.nd had not his witnesses ready. The adjournment was granted till Saturday.

Wandering H(Srses.—W(U. Bond was charged with allowing five horses to wander on the Victoria-roai,. Bevonpirt. A plea of guilty was entered, and a fine of 20s and costs was imposed. Window Smashing. — Thomas Featon, Archibald Cox, and Frederick Palmer, were charged with discharging a missile,, to wit, a cocuanut, and breaking" a pane of glass worth £6 lQs, the property of W. J. Offer. The defendants, three small boys of fiom 10 to 12 years of age, pleaded pot guilty. • Mr. Thorne appeared lor Palmer and Cox, and took exception to the summons, as it did not disclose an offence.. He quoted from Nuttali's dictionary the njeaning of the word missile—"any kind of weapon thrown for the injury of others." These boys were playing football with a cocoannt, and the smaller boy accidentally kicked it through the window. He admitted they were wrong in playing in the street, but for that offence j they could not he charged under this by-law, No. 6, clause 13. The Bench decided to hear the case. William John Offer. Pittstreet,.. was called. Mr. Tuorne objected to having the three charges heard together. They were separate informations arid separate Summonses. Sergeant White said it wa3 not the fault of the prosecution that the three names were not in the summons. They were in the information. Mr. Thorne said le only appeared for two of the defendants, Cox and Palmer. He agreed to have those two cases heard together. Air. Offer said the plateglas3 window was broken, nnd oft making inquiries, Cox aud Featon admitted that the three wer<j kicking tho cocoanut, and broke the window; Featon admitted that ho was the one who kicked it through the window. Witness did not see til- m kicking the cocoanut. George Taylor, a boy eleven years of age, son oil Mr. Taylor, bootmaker, Pitt- . street, deposed to seeing the three boys kicking the Cocoanut in ti.« "street, and Featon kicked it through the window. Thomas Taylor, uiae years of age, gave similar evidence. Const able Clarke also gave evidence. The three boys admitted tq him having been kicking the cocoanut, and that it was Featon who broke the window. Mr.. Thorno pointed out the absurdity of the charge. There was no oflVnce under this bylaw. The defendants were discharged with a caution. Mr. Thorne applied for cojts, but they were notaHowed,

A Di'uty Trick.—Francis Fletcher was charged with throwing a missile, smeared with excrement, to the danger of Sarah MeCorniick, in Wellineton-street. The deieiriatiu, a Loy about 13 years of age, pleaded guilty. The stick was thrown by the boy at Mrs. McCormicltj. who was then in a shop. Her clothes were smeared with the filth. A fine of 10s and coats was imposed. Harbo k Regulations. — Thomas Lafferty and Robert Campbell were chatged with driving horses and vehicle in double harness on the wharf at Other than a walking pace. Both pleaded guilty. They said they had to drive a little faster than usual to catch the steamer Argyle. They were each lined 10s and costs ' ■ -

Chimney on ]?irs. : —James Courtayne, summoned on a charge of allowing a chimney to be on fire, did not appear. . . The case was adjourned till next day. ■ » • Sabbath Bueakixg.—-William Jaggart and Charles Jaggart were charged under an Imperial Act of Charles 11. With exercising their calling as photographers on the Lord's Day. A similar case had been heard before the Evident Magistrate, who had reserved nis decision. Sergeant White asked to have the case remanded till next day. The defendants objected, but the adjournment Was granted.

Assavuf. —John and William McConiiell and William Lye, three youths of about 15 years of age, pleaded not guilty to a charge of assaulting Frederick Waite by knocking him down and kicking him. The prosecutor, a boy of 14., deposed to meeting the two. McConnells in Centre-street. William McCounell kicked him on the thigh and struck him on the head. He knocked him down and hammered him; then the other McConnell struck and punched him. Witness bad no row with them, and gave them no provocation. He reported the matter to the police. He did not see Lye there at all. Charles Davis, of Napier-street, 13 years' of age, discribed the row. Walter DowneS, 11 years, and James Downes a.'ao gave evidence. According to these witnesses, Waite fell when moving back from MuCpunrll, and tried to pick up stones:. The MoCouuells fell on him. Lye came up afterwards and caught Waite, and they fell together. They did not see Lye strike Waite at all. Waite had atones in his pocket, and the McCounells tried to take them from him. Neither of them was present'when the row commenced. For the a boy named Patrick Bartley was called. Not. sufficiently understanding the nature of ah oath, he was allowed to make a. statement. According to his version Waite was ihe aggressor. Mrs. McCnnnell, mother of two oi th» defendants, deposed that she took a stone Out of W aite's hand when lie was about to threw it. She advised him to put down the stones, and go home. The defendants also made statements. The Bench Was satisfied an assault was committed. The two McCohoell's were each fined 10s and costs, or seven days' imprisonment. Lye was discharged.

Railway Regulations.—o. Clayton "was charged under the Public Works. Act, with wilfully and putting the brake cm a second-class railway carn'ayc, between Kllerslie and Auckland, while in motion, oti the 13th instant, which act might obstruct the working of the railway. He pleaded guilty., and was lined 2Qs and e.oat3. WaIUKU R. M. COURT.-Friday. Licensing Act.—. Kro'vn was charged with a breach of the Licensing Act by selling drink on Sunday, the 3rd Qt June, ISS3, ac Awitu. H> pleaded guilty to supplying the drink, not knowing where the person supplied came from,, ha having stated thai; he lived nearly four miles from the hotel.—Fined £5 and costs, £1 I(>3.